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ELRCDismissed· [2023] KEELRC 1179 (KLR)

Public Transport Operators’ Union v Sacco; National Transport and Safety Authority (Interested Party) (Employment and Labour Relations Cause E143 of 2022) [2023] KEELRC 1179 (KLR)

Employment and Labour Relations Court
18 May 2023
OKOcharo Kebira
1,781 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a union's bid for interim orders, confirming courts won't grant final relief like CBA negotiations before trial.

What this practically means

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Executive summary

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The Applicant Trade Union moved the court by Notice of Motion dated March 2, 2022 seeking, at an interlocutory stage, an injunction restraining the Respondent SACCO from victimizing, intimidating or threatening its members; an order compelling regularization and remittance of NSSF and NHIF statutory deductions; an order compelling deduction and remittance of trade union dues for 209 members pursuant to check-off forms; and an order directing the Respondent to commence negotiations of a Collective Bargaining Agreement pursuant to a Recognition Agreement said to have been signed in 2015. The Respondent opposed, contending it is not the employer of the drivers and conductors, doubts the validity of the check-off forms, denies attaining a simple majority, disputes the validity of the 2015 memorandum of understanding, and argued that recognition and CBA orders cannot issue at interlocutory stage. In a brief ruling delivered virtually at Nairobi on May 18, 2023, Ocharo Kebira J held that interlocutory orders must find basis in the pleadings, and that the material placed before the court disclosed no allegations of the victimization complained of. The court further held that the orders on deductions, remittance of dues, CBA negotiations and the Recognition Agreement were sought word for word as in the Memorandum of Claim and could only be granted upon taking of evidence in the substantive suit. The application was accordingly dismissed in its entirety. No costs order was recorded. The substantive dispute remains for trial.

Key legal issues

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01

Whether an interlocutory injunction against victimization of union members could issue

Holding

It could not, as no allegation of the victimization acts complained of was discernible from the Applicant's material and orders must be anchored in the pleadings

Reasoning

The court examined the Applicant's affidavit material and found no allegation supporting the complaint of victimization, intimidation or threats. Since interlocutory orders must find basis in the pleadings, an injunction without any pleaded or evidenced basis could not issue.

p. 4
02

Whether recognition, check-off deduction/remittance and CBA negotiation orders could be granted at interlocutory stage

Holding

They could not; they replicate the relief in the Memorandum of Claim and can only be granted after taking evidence at trial

Reasoning

The court noted the orders on statutory deductions, trade union dues, CBA negotiations and the Recognition Agreement were sought word for word as in the Memorandum of Claim. Such substantive relief is reserved for determination after evidence in the substantive suit, so the interlocutory application failed in its entirety.

p. 4

Legal principles established

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  • Orders sought in an interlocutory application must find basis in the Applicant's pleadings
  • Relief which is the substance of the main claim, such as recognition and negotiation of a CBA, cannot be granted at an interlocutory stage before evidence is taken

Court orders

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  1. 1.The application is dismissed
  2. 2.A signed copy will be availed to each party upon payment of court fees

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (Notice of Motion dated March 2, 2022)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Public Transport Operators’ Union v Sacco; National Transport and Safety Authority (Interested Party) (Employment and Labour Relations Cause E143 of 2022) [2023] KEELRC 1179 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1179/eng@2023-05-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.